It is a disturbing decision by The Court, as is usually the case when they decide on preserving a Constitutional right for what seems to be an underserving person trumping what seems to be justice for a sympathetic victim.

However, it does not appear (I may be wrong) that The Court entirely voided the conviction, but sent the case back to the lower courts, and in its opinion stated:

Scalia added that the lower courts were free to consider whether in shooting Avie, Giles may have intended to dissuade her from notifying authorities about the abuse, a factor that should be considered as part of the Sixth Amendment analysis.

[...]

Justice David H. Souter, joined by Justice Ruth Bader Ginsburg, agreed with Scalia's historical analysis but said prosecutors could introduce evidence that defendants had engaged in a pattern of domestic violence as a substitute for their intent, perhaps opening the door to a finding that the alleged abuser had forfeited his right to confront a missing witness.

Hopefully, the jury will be allowed to hear evidence which will satisfy the burden to void the 6th Ammendment rights for this defendant.

That's not the whole story of the decision. The majority opinion also discussed domestic violence specifically, saying that if it could be shown that the victim's death was part of an abusive relationship that could support a finding that the defendant had intended to isolate the victim and stop her from reporting the crime. I think most IPV murders will fall into that category, so the case will have little impact on domestic violence. The Court also did not throw out the case entirely, it just overturned the conviction and sent it back to the lower court for fact finding on precisely that issue.

Moreover, the majority opinion didn't have the necessary number of votes, so a concurring opinion (which two justices signed onto, thus creating a majority) has a lot of weight. It said about domestic violence:

“If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger.”

So the Court definitely recognizes the situation of domestic abuse is one that needs to be treated differently. I'm no fan of Scalia, but I actually thought this was a really great decision as far as its treatment of domestic violence.

You have to ask which is more important: making it easier for innocent people to be found not guilty but some of the guilty get away, or is it more important to punish more of the guilty ones at the expense of trapping the innocents in the stricter system? I think most people would prefer the former. That's what this ruling is about. You have to look at court decisions not as justice being avoided, but stability of the system being upheld.

The right to face your accuser is a very important right to criminal defendants. As much as one does not want to think about an abused woman on the phone with the police lying to them, it can happen. The defendant has to have a way to defend himself against any accusations otherwise anyone could say anything about the defendant by recording and it would be taken as fact by the court.

Being able to face the accuser does pose a way for defendants to root out false statements. My evidence professor once had this interesting story about a book on the events of Pearl Harbor. The book had several crewmen alleging that their commander had jumped ship early on in the attacks. Said commander sued the author for defamation. During the deposition of the crewmen, the commander sat there and stared at them while they gave their statements. Many of them changed their stories; they just couldn't exaggerate their stories in front of their old commander. Having the accused be in the presence of the accused does influence the testimony (hopefully more toward the truth).

The Supreme Court did not declare Giles not guilty, they just threw out that particular conviction. The man will have to be retried in the lower court. The prosecution may not be able to enter the recording into evidence, but it was noted in the decision that there are other ways to prove guilt.

Palisades is right that it's not as clear cut as the post makes it out to be. There is a careful balance here between defendants' rights (which, I would argue, are a feminist issue in that the warehousing of black men in prisons negatively affects their communities) and the desire to punish domestic abusers. here, the most basic right of criminal defendants -- confrontation of witnesses -- was at issue. The Court's protection of it was correct, and (even Scalia) acknowledge the intricacies of the situation.

I blogged about it the other day at LGM.

(full disclosure: i worked on this case)

This is a tough topic for me because although I realize it's not a complete acquittal for the accused and that I logically understand the importance of the right to confront your accusor and such this is still a personal topic.

My godmother's sister (who worked closely with my mom) was in an abusive relationship. Everyone in the office and her family knew it and tried to convince her to leave but she never did. One day no one had heard from her so they stopped by and she was beaten so badly she had just been laying in her bed for three days. She was taken to the hospital where she had internal bleeeding. She told her nurse that her boyfriend had done this and she eventually died. The man went to trial but since she had died, her declaration to her nurse was considered heresay and was inadmissable, as was all the stories she had told my mom and their co-workers.

The funeral was horrible, all of her friends and families felt so guilty, hell even her mail lady was convinced it was her fault because Lana usually met her to pick up the mail and she should have known something was wrong when she didn't 3 days in a row.

The person who was really responsible did not feel guilty, gloated in court at my mom and goddmother and got away scot free.

Destra- WRONG. The most common and predictable result of a of a defendant being allowed to confront those who have exposed his crime to the world will be intimidation of the witness by that defendant. In fact, there's nothing in your story that convinces me the men were lying in the first place- I think their former officer just scared them into changing their opinion to one which was favorable to him by making threatening faces at them.

The vast majority of stories changed will come from fear of telling the truth, not a sudden stroke of conscience.

PS. We don't need huge amounts of protection against women lying about having been victimized by men. Women lie about this stuff far less frequently than statistics altered by Fox News or paranoid delusional male judges would have you believe.

PPS. And when they are lying, it can be proven without letting the guy they're accusing frighten them in court.

voltairine: The vast majority of stories changed will come from fear of telling the truth, not a sudden stroke of conscience.

[citation needed]

Voltairine-
The right to confront a witness is not "huge amounts of protection against women lying." It is a basic constitutional right that applies to all cases, regardless of the content. And the opinion did say that, in cases of domestic abuse, the right may have to be handled differently.

Moreover, it does not matter if you are not convinced the men were lying or exaggerating; I assume you were not in the courtroom and did not observe the dynamics of the exchange. Hopefully, a competent jury would be able to discern whether a different story meant coming clean or fear of retribution. There are also many systems of protection (though admittedly not completely adequate ones) for people who have reason to fear confrontation with the accused.

Our constitution is founded on non-content-based rules meant to remove the influence of politics. As much as it makes things difficult sometimes, it is necessary for a functional democracy.

I feel like I am missing something. Isn't it the general case that a murder victim cannot testify against her murderer? Why do spouses and intimate partners who are accused of murder need this special right of confronting the person they killed?

I am a law student who just finished evidence class this year. We talked a lot about this issue when we covered the Confrontation Clause of the 6th Amendment. WHether the defendant gets to confront his complaining witness has to do with whether the prior out of court statement (i.e. the statemetn to the police) was "testimonial." Most of the time statemetns to the police are "testimonial" and therefore require the witness to appear in court. Therefore I am not surprised that the court threw out the conviction-- the defendnat's 6th amendment rights were clearly violated.

I am not surprised and I am not angry either. We have the bill of rights to protect even the lowest of the low under the rule of law. As a feminist, lawyer, advocate for domestic violence victims and a liberal I care deeply about individual, fundamental rights. These kinds of situations are very difficult. I work with women who suffered from domestic violence every day at work-- and often all they need is the right kind of support from family and advocates to gain the courage to take the stand. Unfortunately, this woman was unavailable to do so. However some creative lawyering could have solved this problem before it got to the supreme court.

In general, you can't introduce past statements of witnesses who are now unable to be cross-examined. There is an exception to that if the defendant made them unavailable (e.g. by murdering them to prevent their testimony). The question here is whether murders by an abusive partner fall into that exception - even if the murder was part of the abuse more generally and not a specific attempt to prevent testimony at trial.

This is a difficult issue in the domestic violence context, which is why the court specifically spoke to that. But think about it in the context of drugs or gangs - if a gang member told a cop someone else had threatened them, and that person then (allegedly) killed the informer for an unrelated reason, introducing the prior statement would be unfair to the accused because there's no way for him to test the credibility of the statement.

FrumiousB-
The idea (I think) only pertains to the specific phone call to the police; what she said in that phone call cannot be verified under cross-examination, so the prosecution cannot use it to prove premeditation.

Insisting that a murdered person be present to be confronted sounds like it would cause people to be murdered so they couldn't offer testimony about other things.
The whole leave not witnesses. It seems that the letter that says "if anything happens to me" should be considered. If the person has been murdered it doesn't seem likely they were lying about the threat.

During the deposition of the crewmen, the commander sat there and stared at them while they gave their statements. Many of them changed their stories; they just couldn't exaggerate their stories in front of their old commander. Having the accused be in the presence of the accused does influence the testimony (hopefully more toward the truth).

Bullshit. On what basis are you making the assumption that a commander staring down the witness in an intimidating manner persuaded them to tell the truth rather than frightened them out of telling it?

Alice said that Voltairine needs a citation for her claim that witnesses are more likely to change their stories out of fear of telling the truth, and being on Voltairine's side, I say that's fair enough. But not unless we also say that Destra needs a citation for the claim that witnesses are more likely to tell the truth when faced with the accused.

As for the case, I'm not a legal expert either (far from it). I read Bean's post the other day, and I'm still having trouble wrapping my head around it, but from everything I've read it still strikes me as being incredibly fucked up.

What I don't understand -- and this is mentioned in the article -- is how can a defendant reasonably expect to face his accuser in court when he has in fact killed that accuser??? One would think that action voids his expectation of facing the accuser. All this does is prompt these jerks to go ahead and kill the person.

During the deposition of the crewmen, the commander sat there and stared at them while they gave their statements. Many of them changed their stories; they just couldn't exaggerate their stories in front of their old commander. Having the accused be in the presence of the accused does influence the testimony (hopefully more toward the truth).

Bullshit. On what basis are you making the assumption that a commander staring down the witness in an intimidating manner persuaded them to tell the truth rather than frightened them out of telling it?

Alice said that Voltairine needs a citation for her claim that witnesses are more likely to change their stories out of fear of telling the truth, and being on Voltairine's side, I say that's fair enough. But not unless we also say that Destra needs a citation for the claim that witnesses are more likely to tell the truth when faced with the accused.

As for the case, I'm not a legal expert either (far from it). I read Bean's post the other day, and I'm still having trouble wrapping my head around it, but from everything I've read it still strikes me as being incredibly fucked up.

FrumiousB -- I don't think there's a special right of confrontation here. Generally in court you cannot testify to hearsay (though there are a number of exceptions and qualifications to this). To put it differently, if person A tells person B something, person B cannot come into court and testify as to what person A said; instead, person A has to come into court themselves.

There are a number of reasons for this, but one of them is the Confrontation Clause of the Sixth Amendment ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"). So this isn't a special right, but something generally applicable to all criminal cases (and actually hearsay rules apply in civil cases as well, though arguably they're not constitutionally required for civil cases).

A couple of my own thoughts on this. First, letting the police testify to her statements seems circular to me, or rather it assumes what needs to be proved. All the justices agreed that the statements could come in only if the defendant killed her without justification. But what his trial is supposed to determine is whether he killed her without justification (the facts of the case indicated he admitted to killing his ex-girlfriend but said it was in self-defense). He also has the constitutional right to have a jury, rather than a judge, decide under a beyond-a-reasonable standard whether he killed her without justification. Having a judge determine that the defendant killed the alleged victim so that the statements can come in seems to usurp the jury's role. Scalia's opinion discusses this on pages 20-21, though this is the part of his opinion that is only a plurality and not the opinion of the Court.

The second point I want to make is that Supreme Court precedents apply along a whole host of cases. So this ruling isn't limited to domestic violence but to all criminal cases where police want to testify about an alleged statement from someone who died allegedly and arguably as the result of the defendant. So, for example, suppose a defendant was charged as a drug dealer, he has a customer who died from an overdose, and a police officer wanted to testify in court that the customer had told the officer that the defendant had threatened to kill the customer by giving him bad drugs, and so the defendant could be charged with murder based solely on the cop's testimony about what the dead customer said. Or if cops could testify about whatever a dead gang member allegedly said to them to convict other gang members? Would people questioning the decision be comfortable with those results?

Blitzgal - if you kill them to prevent testimony, then you can introduce past statements of the deceased. If you kill them for an entirely unrelated reason, then you can't introduce past statements. Domestic violence is the interesting middle ground.

So alleged murderers have a right to face and question the people they murdered!?
Shouldn't the police have a record of the victim's phone call?
If a woman tells police she's being staked/threatened/abused by person X, and then person X kills her, her history of reporting person X does not factor into the person X's trial? So basically the police won't protect us, and then our cries for help are erased once we're eventually killed. Please correct me if I'm wrong.

This is OUTRAGEOUS! The right to face your accuser in court doesn't mean they have to resurrect a murder victim, and in murder cases the accuser is the STATE not the dead person. This is a fundamental misconstruction of the Constitution and every judge that voted to overturn that conviction should be impeached. Immediately. It's one thing to make a ruling based on a dubious interpretation of the Constitution, it's another thing entirely to make shit up and disregard Constitutional language all together!

Sarah,

That is why we always encourage women to "leave a paper trail" file a PO or something so that, if something ever does happen there is proof that they made what would be considered a "reasonable effort" to avoid the situation. We all know the other issues such as fear to do so, or police not taking reports seriously and discouraging further reports, but if we're looking strictly at how it's "supposed" to happen, that's why official reports are supposed to be made.

SarahMC: So basically the police won't protect us, and then our cries for help are erased once we're eventually killed. Please correct me if I'm wrong.

Courts have consistently held that it is not the job of the police to protect you in the first place, so the first part is nothing new.

Link

One other thing, then I'll stop. If you read Alito and Thomas's concurrences, they say that if the prosecution in this case had made a different argument (that Avie's alleged statements to the police were not covered by the Confrontation Clause at all, rather than the argument they did make which is there's a hearsay exception for statements from people who are allegedly killed by the defendant) that they would have voted to let the statements in.

So, the impact of this particular decision may be minimal if you don't like the result. Presumably prosectuors and government appellate attorneys will pick up on those concurrences and argue next time that such statements aren't covered by the Confrontation Clause at all. I personally don't agree with that view because I think you're giving police a lot of leeway to (ahem) "shade" statements from dead people to the detriment of defendants, but I guess it is what it is, or will be what it will be.

sarahMC--a record of the phone call would also qualify as hearsay because it is still an out-of-court statement offered for its truth.

anyway, it's an interesting legal question. i'll have to read the opinion later, but it seems as though domestic violence occupies a grey area. i'll agree with those who point out the importance of protecting the rights of the accused--this also is to me a feminist issue and one that it is sometimes easy to overlook when presented with an emotional situation like domestic violence.

Cara, Voltairine, Destra: whatever the truth of that example, the main purpose of the confrontation clause isn't so much to influence witnesses by having the defendant look them in the eye, but rather to allow witnesses to be cross-examined. Without that right, prosecutors could very easily manipulate the system: if X, the accuser, is a lying weasel with an obvious axe to grind, instead of having him testify, you just have honest, reliable, impartial Y testify that "X told me Z committed the crime." Thus, the defense has no chance to examine the real accuser.

Also: I think some people have missed what's particularly weird (legally) about this case. Ordinarily, aside from vengeful ghosts, victims are unable to testify about their own murders. The usual application of this law would be a case more like: (a) I rob a bank; (b) X says to the cops, "he robbed a bank!" (c) X dies. Now if X died naturally, her testimony is out, because I can't cross-examine her; but if I killed her (and this doesn't need to be absolutely beyond-a-doubt proven, you just have to convince the judge), then it's my own fault I can't cross-examine her, so the evidence is in.
Of course, ordinarily, it makes no sense to kill someone so they can't testify that you killed them. The difference here is that the murder is part of a more ongoing crime (the abuse), so the victim could have been killed to prevent her testifying about the abuse, and yet the killing also be part of that abuse.

(I think; I'm not a lawyer, and I haven't had time to read the decision, so I may be way off here.)

Rachel and SarahMC,

The Sixth Amendment says that the accused has the right to confront the witnesses against him/her. That clause means that as a general rule, the defendant or the defendant's attorney gets the opportunity to question any witness that will testify against the accused so that the defendant can mount a defense to the case by probing issues of bias, lying, incorrect memory, unreliable memory, etc. The effect of the rule is that if the defendant cannot question that witness, the prosecution is not generally allowed to introduce any testimony from that witness (tape recording, journal entry, etc.). As many of the posters said above, this is a critical aspect of our legal system that was laid down by the founders to make sure that the government cannot manufacture a case against you on the basis of a bunch of out of court statements from a bunch of people you can't cross examine. There are exceptions to the Confrontation Clause and the hearsay rule, which were created through thousands and thousands of court cases where people have been able to test the reliability of certain types of out of court statements. The point is to determine whether the victims out of court statements in this case fall into one of those exceptions such that they can be trusted as reliable when using them as a basis for a person's conviction.

But I would caution those who are quick to throw out the confrontation clause protections in this case, or any particular case. It is no more reasonable to do that on a wholesale basis than it is to throw out any of the other protections enshrined in the bill of rights for our protection from the government, such as search warrants, right to counsel, freedom from cruel and unusual punishment, right to a jury of your peers, etc. These rules protect the guilty and the innocent alike, but they help us (try to) convict the guilty and protect the innocent from being wrongly accused or convicted.

Full disclosure: I'm a third-year law student whose specialization is in criminal law.

The Confrontation Clause is a big right, and its history goes back very far in to Anglophone jurisprudence, to the case of Sir Walter Raleigh. The theory is that every accused, who is presumed innocent unless the government proves otherwise by a very high burden, has the right to, with full presumption that he or she is innocent, confront his or her accusers in open court.

If this right is not met, the general rule is to invalidate the conviction. It's a policy choice that we must always respect the rule of law, even if it works against what we might ordinarily think is the right result, so that the law remains inviolate.

However, and this is the problem with the type of analysis that Justice Scalia engages in so often, a focus on what a right has historically meant is often blind to how unjust that law operated in the past.

The ironic thing is that it has been a foundational principle of American jurisprudence that a criminal cannot benefit by his own misconduct. If he had tried to scare her away, under the case of Reynolds, her deposition or other transcript could probably have been read.

The unique fact in this case, however, was his attorney's insistence on following the case of Crawford (decided in 2004) and insisting that confrontation was necessary to proving his affirmative defense of self-defense (an exception to the general rule that the defendant need not prove anything affirmatively).

Crawford's, ruling, put in non-legalese, is that if a witness is going to give testimonial evidence against someone, that person has the right to confront and cross-examine them. This is closely tied to another legal concept called hearsay, or the idea that we prefer first-hand testimony unless there is an indicia of reliability to attach to the hearsay testimony.

But one of the statutory exceptions to the hearsay rule is where the declarant is unavailable by reason of death. In most states and the federal system, this rule says you can introduce hearsay testimony if the person is unavailable by reason of death and there is some other indicia of reliability, such as making a report to police.

Were I a judge ruling on the admissibility of the statement, I would have held that the equitable exception from Reynolds and the operation of the unavailable declarant hearsay exception were sufficient to make her testimony admissible to rebut the affirmative defense. Confrontation rights would be satisfied because at the point where we're putting the defendant in the position of having to affirmatively prove his own case, he has the burden of producing witnesses or other evidence to support his argument, as well as the burden of persuading the jury. This was not an accusation against him, but rather an attempt to rebut his own, voluntarily-introduced defense.

I can't think of a reason why Crawford is on point on this case. This is a bad decision; I am in full agreement with the dissent.

Okay, I should say upfront that in the context of the case being argued, and its specifics, this ruling makes me pretty queasy.

I do, however, recognize that the SCOTUS took into account in their decision other instances where the ruling could be applied, some of which have been mentioned already in comments here. I get that. And I understand the right of defendants to confront their accusers a la the 6th amendment, and how important that is in trials. Notably, this decision may have a significant impact on women as well; couldn't it be argued that this position is beneficial to feminism in some ways, though not in others? Maybe that doesn't make sense at all. I'm not sure.

I am curious about the part of the decision where domestic violence, specifically, is discussed. Was this in Scalia's section that was agreed upon by the majority, or was it part of Scalia's section that was not signed onto by Souter and Ginsburg, or in the concurring opinion by Souter and Ginsburg? I am trying to figure out who wrote what. I am only slightly comforted by the fact that Ginsburg, who [correct me if I'm wrong, but from what I recall] is pretty kickin' on women's issues, is part of the majority, even if it was reached by a plurality.

Since I don't have time to read all of the documents in full right now [and I'm not quite a law student yet], would someone more in the know than I am please try to explain the specifics involved that pertain to domestic violence cases and how this would differ in application from other cases where this reasoning would apply? I am getting the impression that the justices set up a slightly different standard or a lest the possibility of a different standard in the wording of the decision. I would like to know more about that.

SarahMC and others,

That isn't what this ruling says.

The court didn't say the evidence couldn't be introduced, only that the reasoning the lower court gave for introducing the evidence was wrong.

The lower court can (and probably will) use the "new" (actually old) standard to come to the exact same conclusion.

The Cali court said (to summarize roughly) "He's guilty of murdering the witness so he forfeited his right to confront the witness in the murder case of that witness."

The USSC said "You have to look at whether he intended to prevent her from testifying and in doing so you can look at the defendant's history of domestic abuse."

The Cali court's ruling was nonsensical as it found his guilt before a jury did. The USSC said, look at the intent...and if there is domestic violence you can imply the intent...but you still have to make intent rather than guilt the basis of your analysis.

LlesianLlama --

Once you get to law school you'll find out about fun things called pluralities, where a non-majority but still plurality of the justices agree to certain sections, but not all. By my count, everything but II(D)(2) is a majority opinion, and II(D)(2) is only a plurality because Ginsberg and Souter refused to join. II(D)(2) is Scalia being his traditional, prickish self and sniping at the dissent. It contains a historical analysis of the purpose of the Reynolds exception.

Scalia's ruling is that a prior judicial determination that the defendant's bad conduct was intended to prevent someone from testifying is necessary in order to establish that a defendant has voluntarily waived his confrontation rights. I disagree with this, because I question whether the defendant has any confrontation rights on an affirmative defense in the first place, or whether he is entitled to confront rebutting evidence that he has voluntarily placed at issue.

Second, there is still a chance for the trial court to make this finding based on the evidence, but it's now another procedural hoop to jump through in order to get testimony from an unavailable declarant in to court. I think Scalia is slavishly devoted to the idea of confrontation being inviolate (which, while important, is neither practical nor advisable, as this case shows).

The man went to trial but since she had died, her declaration to her nurse was considered heresay and was inadmissable

Aren't dying declarations an exception to the hearsay rule?

LlLl -- there are separate discussions of how previous events of domestic violence could be used to show the defendant's intent in Scalia's majority opinion, Souter's concurrence that was joined by Ginsburg, and in Breyer's dissenting opinion. My reading, which I'm sure is oversimplifying, is that Scalia's majority opinion says a history of domestic violence is highly relevant that the defendant intended to kill the deceased to prevent testimony, but the majority is not clear whether such evidence in and of itself is sufficient to infer intent. (Page 23) The Souter/Ginsburg concurrence, even though they join the majority opinion, seem to say that a history of domestic violence is sufficient ("would normally be satisfied") to infer intent to kill the deceased to prevent testimony. The Breyer dissent basically says the same thing as Souter, and actually agrees with the concurrence. (see the end of the dissent) Honestly, upon re-reading these sections of these three opinions, it seems like they may all be splitting hairs and makes me wonder why they couldn't get together for one opinion.

One other technical point: except for one portion of the opinion, Scalia's opinion is the majority opinion since the opinion was joined by Ginsburg and Souter.

Hey all- I'm a 3rd year law student and I just took some courses on this issue.

The 6th is not just about confronting your accuser, but any witness against you- to cross examine them and have the judge or jury evaluate their answers and demeanor. There are many exceptions to the hearsay rule- which the Crawford and Washington decisions discussed- one test they focused on was whether the statement was testimonial, as mentioned above. That means "could you have reasonably anticipated your statement would be used in a case?". (the assumption that you would have time to make up a story that is favorable to you). So if you are calmly making a police report- that clearly is testimonial. But if you scream into the phone that someone is beating you, or if you are trying to explain to the medics how you recieved your wounds while hysterically crying, that could probably be admitted because it is done to help the professionals in an emergency, and it is assumed you don't have time to think of a lie, or have no reason to. There are many other exceptions as well, so not all cries for help are "lost", but it IS hard to get them in.

Domestic violence has become a hot topic in this area of law. Many states have passed laws allowing extra hearsay exceptions because of the unique circumstances of abuse- this has precedence in sexual assault cases, where evidence of past bad acts can be admitted. (you generally cannot admit evidence of past crimes to prove someone committed THIS crime, aka "this is a bad person who does these kinds of bad things, so they clearly did THIS bad thing"

The unique elements of DV (much like sexual assault) mean that it is much harder to prosecute the case- the victim rarely tells anyone about the abuse, and will frequently recant their complaints out of fear of injury, loss of home, threats to children or more. Even when a case does go forward, survivors will frequently testify for the defense. Domestic violence, like sexual assault, often happens in secret behind closed doors, so there is little evidence and few witnesses.

Unlike other violent crimes, part of the abuse is the control and fear the abuser has over the victim.

So the court might be acknowledging that the right to confrontation might be different and might need to be changed in cases of domestic violence.

ps also, dying declarations are only admissible when you believe you are about to die and your statement relates to the cause/circumstances of your death

Ugh. Cases like this. I'll just say I appreciate seeing how many readers are involved in the legal field, or will be, and I hope you'll be the ones to change the system for the better.

"That is why we always encourage women to 'leave a paper trail' file a PO or something so that, if something ever does happen there is proof that they made what would be considered a 'reasonable effort' to avoid the situation."

And I wish victims and potential victims did not need to be expected to "avoid" anything to remain safe.

[Because of my new job, my wife and children went on a four week trip alone. I'm worried, because I told her she looked like a lone Japanese tourist. Yes, she IS Japanese, but it doesn't help that she insisted on carrying a huge rainbow colored "Hawaii" shopping bag stuffed to capacity with souvenirs and a significant amount of cash. She *looks* like a traveler, and where we live, that can be a *bad* thing.]

A male...

Depending on where you are now...they may just think she's Latino...which is what they think my husband (also Japanese) almost everywhere we've lived except Hawaii.

Not that its a particularly comforting thought given the extreme racist/ "anti-immigrant" sentiment is in parts of this country.

a male:
the paper trail doesn't actually make people safer (i.e. reducing the chance of the violence actually happening), it mostly just increases the chances the perp will end up convicted. A minor, but important, distinction.

The case itself isn't as bad as you seem to think it is. A various other legal commenters here have pointed out, there is still considerable room for the lower court to rule her testimony admissible.

Thanks everyone for clarifying in more detail the specifics of what the various justices wrote and signed on to.

"Depending on where you are now...they may just think she's Latino...which is what they think my husband (also Japanese) almost everywhere we've lived except Hawaii."

I do live in Hawaii, where Japanese and Japanese money, are plentiful. And a number of criminals such as robbers and thieves specifically target travelers for the perception they are carrying cash and valuable goods; as well as the fact that they will likely not travel all the way back to Hawaii to make court dates "only" to prosecute a criminal in the theft of some money and replaceable items such as a watch or camera.

[Which ties in to the issue in this OP: no witness or complainant, no case. BS. It isn't easy to get MORE vacation leave, or come up with MORE thousands of dollars to fly and stay in a hotel, "just" to testify in court over a matter of (hopefully) just a few hundred dollars.]

One year while visiting Hawaii, but with a "permanent" residence in Japan, my wife "lost" a wallet filled with cards, ID, and maybe $160 on the day we were supposed to fly out. We made a police report, but decided screw it, and never followed up on it once we returned. We were fortunate it wasn't anything irreplaceable or with sentimental value, and our identity and credit appear to remain safe years later.

I would think that if you kill a person, then it's obviously all right with you that you'll never get to interact with them in the future.

If you want to talk to a person, confront them, whatever, and have them answer back, it's pretty much obvious that you need to leave them alive for that to happen.

Any expectation otherwise is the equivalent of a toddler throwing a piece of candy over a cliff and then whining that he doesn't have it anymore.